Policy issues delay ruling on military court

The federal government has hit back at criticism it has been slow to establish a constitutionally valid military court to replace the Defence Force’s courts martial system that operates outside the federal judicial system.

The government’s plan had been to introduce legislation in the autumn sitting, which ended last Friday, but this will now be pushed out until the next session at the earliest.

Liberal senator
David Johnston
last week questioned the delay, given Labor announced in May 2010 an anticipated start date for the Military Court of Australia of late 2011, asking why “this important matter has sat on the backburner".

A spokeswoman for federal Attorney-General
Nicola Roxon
said this week: “Frankly it’s a bit rich for the Coalition to be urging haste when their rushed and poorly planned court was ruled constitutionally invalid".

The Howard government’s Australian Military Court was disbanded after the High Court ruled it unconstitutional in August 2009.

In Parliament last week, Labor Senator
Chris Evans
said the delay in creating a new court was because Defence Minister
Stephen Smith
had been working with Ms Roxon to resolve a number of “difficult", “complex" policy issues.

Ms Roxon’s spokeswoman would not be drawn on exactly what “complex" and “difficult" issues were being negotiated, saying only that they were continuing stakeholder consultation with a view to introducing legislation in the winter sitting.

Defence Department head of legal Mark Cunliffe said the proposed military court would be able to access resources available to existing federal courts, to avoid duplication and unnecessary cost.

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“The government has indicated that it will not be cutting corners or delaying implementation because of the wider fiscal circumstances," Mr Cunliffe said.

The government has, however, through the Department of Finance, been reviewing federal courts and tribunals in an effort to slash costs and meet its commitment to a return to budget surplus in the 2012-13 financial year.

Former High Court judge
Michael Kirby
expressed concerns in 2007 that the structure of service tribunals, including the courts martial and Defence Force magistrates systems, currently in use, envisaged serious departures from the features of a court created under Chapter III of the Constitution. “Those features," he said in the 2007 case of White v DPP “are essential to the independence and impartiality of the courts".

The creation of a military court has slipped down the list of priorities for the government. Nearly three years ago, the then defence minister,
John Faulkner,
said development of a suitable model for a Chapter III Military Court was “a matter of ­priority".

Opposition insiders suggested it was because the government could not get sign-off from top military brass; others suggested the Attorney-General’s department was dragging its feet because of a fear the legislation might not withstand a second High Court challenge.

A key issue could be the removal of the right to a jury trial for indictable offences, achieved through changing the definition of what constitutes a chargeable offence.

Australian Defence Association director Neil James said the bill for the new military court, released in 2010, contradicted the Constitution.

A broader issue was the incapacity of civilian legal practitioners and politicians not appreciating the special circumstances that arise in military service, he said.

The Australian Financial Review understands legislation currently being negotiated between the Department of Defence and the Attorney-General’s department is not identical to the 2010 bill.